When a West Virginia police officer suspects someone working in the state may be present unlawfully, what can the officer actually do without risking a federal civil rights lawsuit?

Plain-English summary

The Secretary of West Virginia's Department of Military Affairs & Public Safety asked a focused question: if a state law enforcement officer suspects an undocumented immigrant is working in West Virginia, what can the officer legally do? Specifically, can an officer show up at a workplace and require workers to produce identification proving lawful immigration status?

The AG's answer, in plain terms: not by themselves, and not in the way that question implies.

The opinion walks through two governing precedents and three practical pathways.

The Supreme Court: Arizona v. United States (2012). Arizona reviewed four pieces of an Arizona law and reached two relevant conclusions. First, the Court struck down a provision authorizing state officers to arrest people based on probable cause that they were "removable" from the U.S. The federal scheme limits state officers from making warrantless removability arrests except where a 287(g) agreement applies, in which case the officers act under federal supervision. Second, the Court allowed (against a facial challenge) a provision requiring state officers to make a "reasonable attempt" to determine immigration status when stopping a person on some other basis, but explicitly reserved the constitutionality of detaining a person solely to check immigration status, noting it "would raise constitutional concerns."

The Fourth Circuit (which covers West Virginia): Santos v. Frederick County (2013). Santos answered the question Arizona reserved. The Fourth Circuit held that "absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law" without violating the Fourth Amendment. The facts of Santos are very close to the question Secretary Sandy asked: officers approached an immigrant outside her workplace at lunch and detained her for ~15 minutes to verify a possible ICE warrant. The 287(g) agreement her department had did not cover the specific officers, who lacked training. The Fourth Circuit held the seizure unconstitutional, and stressed the workplace-context did not change the analysis.

The federal civil-rights stakes. Under Hunter v. Town of Mocksville (4th Cir. 2015), qualified immunity turns on whether the right was "clearly established" at the time. Santos (2013) is a published Fourth Circuit decision specifically holding immigration-status-only detentions unlawful. After Santos, an officer making such a detention is on shaky qualified-immunity ground. The U.S. Supreme Court denied cert in Santos in 2014 (denial does not endorse the merits, but it does mean Santos remains the law in the Fourth Circuit).

Three legitimate pathways.

1. Consensual encounters. Talking to someone, asking questions, checking documents, all without detaining the person, does not implicate the Fourth Amendment. Santos explicitly noted that the initial questioning was consensual and "did not implicate" Fourth Amendment scrutiny. So an officer can approach a worker, ask questions, and accept whatever information the worker volunteers, without needing any suspicion.

2. Status check during a lawful stop or detention based on something else. If an officer has stopped someone on a valid traffic basis or other lawful detention, the officer can also check immigration status, as long as the check does not extend the stop. Arizona expressly endorsed this. Santos concerned only seizures "solely based on" immigration suspicion.

3. Federal cooperation. Two flavors. (a) 287(g) agreements: the U.S. Attorney General (now Secretary of Homeland Security under 6 U.S.C. § 251) can sign formal agreements authorizing state officers to perform immigration-enforcement functions. The agreements require certified training, written authorization, and federal supervision. (b) Specific, timely federal requests: a state officer may detain a suspected undocumented immigrant when ICE has affirmatively asked, in advance. Santos rejected reliance on a federal request that came 45 minutes after the seizure had already begun. The federal authorization has to precede the detention.

On the workplace inspection question specifically: based on the Santos facts and the AG's reading, a state officer cannot simply walk into a workplace and require IDs from workers based on a generic suspicion of undocumented status. That is exactly the kind of unilateral state action the Fourth Circuit shut down. The officer needs either consent from the workers, an existing valid basis for detention (something else justifying the stop), or 287(g)/federal-request cover.

The opinion notes the Trump administration's January 2017 executive orders calling for expanded use of 287(g) agreements but does not assume any expanded state authority absent that infrastructure being put in place.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Federal immigration enforcement priorities, the network of 287(g) agreements, and qualified-immunity doctrine have all evolved since 2017. Anyone planning a workplace enforcement program or training officers on immigration-related stops should consult current Fourth Circuit law and current Department of Homeland Security guidance, not this 2017 opinion alone.

Common questions

Q: Can an officer ask someone for their immigration status during a routine traffic stop?
A: At the time of this opinion, yes, if the question does not extend the duration of the lawful stop. Arizona permits status checks "during the course of an authorized, lawful detention." Santos draws the line at detentions "solely based on" immigration suspicion.

Q: What if an immigrant volunteers their status during a consensual conversation?
A: At the time of this opinion, no Fourth Amendment problem with the conversation itself. Whether the officer can then act on that information depends on the next step (status check via federal channels, transport to ICE, etc.) and whether that step is consensual or detention-based.

Q: Does a 287(g) agreement let any officer in the agency enforce immigration law?
A: No. Per 8 U.S.C. § 1357(g)(2), the agreement must include a written certification that the participating officers "have received adequate training regarding the enforcement of relevant Federal immigration laws." Santos itself involved a department with a 287(g) agreement, but the specific officers were not trained or authorized.

Q: If ICE requests an arrest, can a state officer act?
A: At the time of this opinion, yes, if the request is timely and predates the detention. "Specific request from U.S. Immigrations and Customs Enforcement" is one of the authorized pathways the Fourth Circuit recognized. The request from ICE in Santos came too late, 45 minutes after the seizure was underway, and could not retroactively justify it.

Q: Does this opinion address sanctuary policies or 8 U.S.C. § 1373?
A: No. The AG specifically declined to address whether state or local laws restricting cooperation with federal immigration authorities are valid. The opinion is about what state officers can do, not what state law might forbid them from doing.

Q: Are there qualified-immunity protections for an officer who acts in this gray area?
A: After Santos (2013), the right to be free from immigration-status-only detention is clearly established in the Fourth Circuit. Hunter v. Town of Mocksville (2015) frames qualified immunity around clearly-established law. So officers in West Virginia (which is in the Fourth Circuit) are on weaker ground than they would be in a circuit without a Santos equivalent.

Background and statutory framework

Federal statutes.
- 8 U.S.C. § 1357(g)(1)-(3): authorizes 287(g) cooperation agreements between the U.S. Attorney General (now Secretary of Homeland Security) and state/local law enforcement; requires certified training; subjects participating officers to federal direction and supervision.
- 8 U.S.C. § 1357(g)(10): allows state-federal communication and cooperation regarding immigration status without a formal agreement, but does not authorize unilateral state arrests (per Arizona).
- 8 U.S.C. § 1373: limits state/local restrictions on communication with federal immigration authorities (referenced but not analyzed).
- 6 U.S.C. § 251: transferred 287(g) responsibility to the Secretary of Homeland Security.

Key cases.
- Arizona v. United States, 567 U.S. 387 (2012). Struck down state authority to arrest based on removability; reserved question of detention solely to check status; "raised constitutional concerns" with that scenario.
- Santos v. Frederick County Board of Commissioners, 725 F.3d 451 (4th Cir. 2013). Held that absent express federal authorization or direction, state/local officers may not detain or arrest based on suspected civil immigration violations alone; cert denied 134 S. Ct. 1541 (2014).
- Hunter v. Town of Mocksville, NC, 789 F.3d 389 (4th Cir. 2015). Standard qualified-immunity formulation: clearly-established law at the time of the alleged violation.

Three legitimate pathways the AG identifies:
1. Consensual encounters (no Fourth Amendment seizure, so Arizona and Santos do not constrain).
2. Status check during lawful detention based on other grounds (so long as the check does not prolong the detention).
3. Federal cooperation: 287(g) agreement with covered/trained officers, or specific timely federal request preceding the seizure.

The narrow holding. The AG says only that workplace-ID inspections by state officers, based solely on suspicion of unlawful presence, would likely create civil liability under Santos. The opinion does not categorically forbid state immigration enforcement; it identifies the narrow rules that govern.

Citations and references

Statutes:
- W. Va. Code § 5-3-1 (AG advisory authority)
- 8 U.S.C. § 1357(g)(1)-(3), (g)(10)
- 8 U.S.C. § 1373
- 6 U.S.C. § 251

Cases:
- Arizona v. United States, 567 U.S. 387 (2012)
- Santos v. Frederick County Board of Commissioners, 725 F.3d 451 (4th Cir. 2013)
- Frederick County Bd. of Comm'rs v. Santos, 134 S. Ct. 1541 (2014) (cert denied)
- Hunter v. Town of Mocksville, NC, 789 F.3d 389 (4th Cir. 2015)

Executive orders cited:
- Executive Order, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017)
- Executive Order, Border Security and Immigration Enforcement Improvements (Jan. 25, 2017)

Source

• Landing page: https://ago.wv.gov/media/17821/download?inline
• Original PDF: https://ago.wv.gov/media/17821/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

April 21, 2017
Jeff S. Sandy, CFE, CAMS
Secretary of the West Virginia Department
of Military Affairs & Public Safety
1900 Kanawha Blvd. East
Capitol Complex, Bld. 1, Room W-400
Charleston, WV 25305

Dear Secretary Sandy:

You have asked for an Opinion of the Attorney General about what steps a West Virginia law enforcement officer would be legally authorized to take when he or she suspects that an illegal alien is working in West Virginia. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advise upon questions of law, . . . whenever required to do so, in writing, by . . . any . . . state officer, board, or commission." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your request raises the following legal question:

May a West Virginia law enforcement officer, without being subject to liability, require a person working in West Virginia to produce identification to prove immigration status based on suspicion that the person is not lawfully present in the United States?

Specifically, you have inquired whether a West Virginia law enforcement officer would be permitted to go to a workplace and request identification from the workers. We understand you to be asking what steps may be taken to enforce the law against the illegal alien worker, as opposed to steps that could be taken to enforce the law against the employer. And based on our correspondence and discussions, we understand that you are seeking advice about the steps that state law enforcement may take in the absence of cooperation with federal authorities.

We begin with the governing case law. The U.S. Supreme Court has recently issued a decision that provides guidance on the steps that state law enforcement may take to enforce federal immigration law. In Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2497-98 (2012), the Court reviewed four different provisions of an Arizona law designed to aid in the enforcement of federal immigration law to determine whether those provisions were preempted by federal law. The review of two of those provisions, in which the Court struck one provision and reserved a constitutional question regarding another, is relevant to your inquiry.

First, the Supreme Court struck down a provision of Arizona law that granted state law enforcement officers the authority to arrest a person based on probable cause that the person had committed an offense that made him or her removable from the United States. Id. at 2505-07. The Court concluded that this provision conflicted with a federal statutory scheme that governs the arrest of removable aliens. Id. at 2507. The Court interpreted the federal scheme to provide that "state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances." Id. Those circumstances included "when the [United States] Attorney General has granted that [arrest] authority to specific officers in a formal agreement with a state or local government." Id. at 2506. "Officers covered by these agreements," the Court explained, "are subject to the Attorney General's direction and supervision." Id. In the Court's view, therefore, the Arizona law created "an obstacle to the full purposes and objectives of Congress" "[b]y . . . authorizing state and local officers to engage in these enforcement activities as a general matter." Id. at 2507.

Second, the Supreme Court rejected a facial challenge to a provision of Arizona law that required a state officer to make a reasonable attempt to determine a person's immigration status when the officer had reasonable suspicion of unlawful presence with respect to a person stopped, detained, or arrested on some other basis. Id. at 2507-10. The Court explained that "Congress has done nothing to suggest it is inappropriate to communicate with [U.S. Immigrations and Customs Enforcement] in these situations" and, in fact, had "encouraged the sharing of information about possible immigration violations." Id. at 2508.

The critical aspect to this holding is that the Court left open the constitutionality of a state officer stopping a person or prolonging a detention solely for the purpose of determining immigration status. Some parties argued that the requirement to check on immigration status might lengthen the time of an otherwise permissible stop or detention, and the Court agreed that "[d]etaining individuals solely to verify their immigration status would raise constitutional concerns." Id. at 2509. But the Court explained that the Arizona law "could be read to avoid these concerns." Id. The Court declined to pass on the constitutionality of this provision because if it only required "state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption, at least absent some showing that it has other consequences that are adverse to federal law and its objectives." Id. The Court thus did not address "whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law." Id.

These two holdings in Arizona provide some guidance on the steps that may be taken by state law enforcement officers who believe that an illegal alien is working in West Virginia. Arizona prohibits a state law enforcement officer who is not cooperating with federal authorities from arresting a person for mere unlawful presence. But while Arizona suggested there may be "constitutional concerns" with a state law enforcement officer detaining a person based on reasonable suspicion of unlawful presence, the Court did not ultimately answer that question.

Precedent from the U.S. Court of Appeals for the Fourth Circuit, which covers West Virginia, provides further important guidance. It answers in the negative the question Arizona reserved, i.e., whether a state law enforcement officer may detain a person based on suspicion that that person is illegally present in the United States. In Santos v. Frederick County Board of Commissioners, 725 F.3d 451, 465 (4th Cir. 2013), the federal appeals court announced that a state law enforcement officer may, after its decision in that case, be subject to liability when that officer detains a person based only on suspicion that he or she is an illegal alien, unless the relevant state law enforcement agency has entered into an agreement with federal authorities and the officer has received training. Specifically, the Fourth Circuit concluded that "absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law" without violating the Fourth Amendment. Id. at 465.

The case involved the prolonged detention of an individual who, after being approached by state law enforcement outside her workplace, initially answered certain questions voluntarily. The Fourth Circuit noted that the initial encounter in Santos "did not implicate the Fourth Amendment" because the illegal immigrant had voluntarily submitted to questioning. Id. at 462. But after learning that there was a potentially applicable U.S. Immigration and Customs Enforcement warrant, the officers in Santos detained the illegal immigrant for roughly 15 minutes to confirm that the warrant was active. Id. at 458. The Fourth Circuit concluded that the officers "violated Santos's rights under the Fourth Amendment when they seized her after learning that she was the subject of a civil immigration warrant and absent ICE's express authorization or direction." Id. at 468. Importantly, the officers' law enforcement agency had reached an agreement with ICE that authorized some deputies to enforce federal immigration law, but the particular officers making the stop were not "trained or authorized to participate in immigration enforcement." Id. at 457. Furthermore, because you have asked specifically about identifying suspected illegal aliens at places of employment, we note that although the officers had approached Santos outside her place of work during her lunch break and confirmed her employment before they seized her, id., this fact did not change or appear to play any role in the Fourth Circuit's analysis.

Santos establishes that a state law enforcement officer in West Virginia may be held liable if the officer detains a person working in West Virginia solely to determine whether he or she has lawful immigration status. The holding in Santos is broad: "absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law." 725 F.3d at 465. And the facts are similar to the enforcement scenario you have proposed, going to a workplace and requiring the presentation of identification based on suspicion that an employee is an illegal alien. Although we do not express an opinion on whether the Supreme Court would agree with the conclusion in Santos, the Fourth Circuit's decision is precedent in the governing circuit and could present the possibility of liability. See Hunter v. Town of Mocksville, NC, 789 F.3d 389, 396 (4th Cir. 2015) (qualified immunity turns on whether a constitutional right was "clearly established" at the time of the alleged violation).

Nevertheless, state law enforcement officers retain some options under governing precedent to investigate whether illegally present workers are employed in West Virginia. First, neither Santos nor Arizona prohibit a state law enforcement officer from checking immigration status of a person based on information learned during a consensual discussion. Santos concluded that the initial questioning of the illegal alien "did not implicate the Fourth Amendment" because the encounter had been consensual. 725 F.3d at 462. And though Arizona said that "[d]etaining individuals solely to verify their immigration status would raise constitutional concerns," 132 S. Ct. at 2509 (emphasis added), it did not suggest that a consensual discussion would be impermissible.

Second, state officers may confirm a person's immigration status based on information obtained during a lawful detention so long as that confirmation process does not prolong the detention. Arizona explained that an immigration status check "during the course of an authorized, lawful detention or after a detainee has been released . . . likely would survive preemption, at least absent some showing that it has other consequences that are adverse to federal law and its objectives." 132 S. Ct. at 2509. Similarly, Santos concerned only detention by state law enforcement that is "solely based on known or suspected civil violations of federal immigration law." 725 F.3d at 464 (emphasis added).

Third, state law enforcement officers may also work in cooperation with federal authorities to detain a person that they believe is employed in West Virginia while illegally present in the United States. Arizona and Santos leave at least two paths available for such cooperation.

Both Arizona and Santos acknowledged that state law enforcement agencies may enter agreements with the U.S. Attorney General that permit officers of the state law enforcement agency to perform immigration enforcement functions. 8 U.S.C. § 1357(g)(1); Arizona, 132 S. Ct. at 2506; Santos, 725 F.3d at 457, 463. These agreements must include a written certification that the state officers "have received adequate training regarding the enforcement of relevant Federal immigration laws." 8 U.S.C. § 1357(g)(2). State officers enforcing federal immigration law under one of these agreements are "subject to the direction and supervision of the [U.S.] Attorney General." Id. § 1357(g)(3).

These federal-state agreements may be encouraged under the current presidential administration. A recent executive order declared that "[i]t is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law." Executive Order, Enhancing Public Safety in the Interior of the United States, § 8 (Jan. 25, 2017); see also Executive Order, Border Security and Immigration Enforcement Improvements, § 10 (Jan. 25, 2017). The Secretary of Homeland Security has been instructed to "take appropriate action, through agreements under section 287(g) of the [Immigration and Nationality Act, 8 U.S.C. § 1101, et seq.], or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary." Executive Order, Enhancing Public Safety in the Interior of the United States, § 8(b); Executive Order, Border Security and Immigration Enforcement Improvements, § 10(b).

Arizona and Santos also leave open the possibility that state officers may, in response to a specific request from U.S. Immigrations and Customs Enforcement, detain an illegally present person suspected of working in West Virginia. Under federal law, no federal-state agreement is required for state officers to communicate with the U.S. Attorney General regarding the immigration status of an individual or to otherwise cooperate with the Attorney General "in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U.S.C. § 1357(g)(10). Arizona concluded that this provision did not authorize the Arizona law that allowed state officers to unilaterally arrest a person when the officers had probable cause to believe that person was illegally present in the United States. 132 S. Ct. at 2505-07. And Santos rejected the state officers' reliance on a request from ICE that came 45 minutes after the officers had already detained the individual. 725 F.3d at 465-68. What is absent from these decisions is a timely request from the federal government. We believe these decisions leave open the ability of state officers to detain a person with "express direction or authorization by federal statute or federal officials." Id. at 465; see Arizona, 132 S. Ct. at 2507 (noting the "absen[ce] [of] any request, approval, or other instruction from the Federal Government").

In sum, while we conclude that controlling case law prohibits a state law enforcement officer from detaining an individual based solely on suspicion that the person lacks lawful immigration status, there are other options available to state law enforcement, including several methods of cooperating with the federal government.

Sincerely,

Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Gilbert Dickey
Assistant Attorney General